Four days before the Defamation Bill has its final and decisive debate in the House of Commons we find ourselves writing to you about disgraceful behaviour from politicians that will put everything we’ve worked for at risk.

Conservative MP and libel barrister Sir Edward Garnier is trying to remove the part of the Bill that would limit companies’ ability to use libel threats to intimidate critics into silence. His attempt to remove this will be voted on during debate on the Bill on Tuesday 14^thApril. Please write to your MP and tell them not to support Garnier’s amendment.

We’ve heard that the Conservatives might back Garnier on this, and that the Lib Dems will join their Conservative colleagues even though restricting corporations from suing individuals unless they can prove harm is Lib Dem party policy! It was voted for overwhelmingly in the House of Lords. Please write to Nick Clegg and David Cameron and urge them to tell their parties not to support Garnier and to make sure the clause on companies becomes part of the Defamation Bill.

Read our briefing for MPs on why this along with a clear strong public interest defence would do the most to lessen the damage the laws are doing to free and open debate. A Bill without either reform would be a wasted opportunity. Please point your MP towards our briefing when you write to them.

We’ve seen the best of democracy in action – we have forced libel reform onto the political agenda and when politicians have listened to us all we’ve seen the best improvements to the Defamation Bill. But behind closed door dealing and cowardly behaviour threatens everything we’ve worked for. Please tell your MP not to support Garnier amendment and tell David Cameron and Nick Clegg that the Government shouldn’t either.

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This piece originally appeared on Independent Blogs

It is a watershed moment for press freedom and for freedom of speech in the UK. By the end of 2012, we could have pressed the reset button both to ensure British journalism represents the best in investigative and high quality reporting, and to strengthen freedom of speech and comment across the board. Or, if the wrong choices are made, 2012 could be the moment when British press freedom is curtailed and when wider freedom of speech and provocative scientific debate,online and off, is dampened and constrained.

Lord Justice Leveson’s report into press standards is due in the autumn – prompting much speculation about his likely recommendations. But less attention has gone to one vital line in the Queen’s Speech promising a Bill to reform England’s outdated, and inhibiting, libel laws.

Libel law has inhibited freedom of expression here for years, as the threat of high costs, and potentially high (though capped) awards,  either lead authors — journalists, researchers, bloggers —  to self-censor from the start or to back down rapidly when faced with threats of legal action.

Taken together, Leveson’s report and the defamation Bill are likely to transform freedom of speech, free comment and freedom of the press in the UK – for better or for worse.

Leveson is still taking evidence but one crunch issue is what form of new, independent regulatory body he may propose for the British media – and whether he goes for statutory powers to force print media to sign up to the new body. A statutory solution would be a dangerous moment for journalism: allowing government intervention where self-regulation has always been seen as vital to press freedom ensuring independence in who publishes, on what topics, in what ways. Or will Leveson adopt other routes to both improving editorial standards and reinforcing the media’s ability to carry out high quality investigative journalism?

When Leveson reports this autumn, it is probable the libel Bill will be going through its final reading in Parliament. A draft version of the Bill already exists, and the government is expected to table the final version rapidly after the Queen’s Speech.

There are some important steps to welcome in the draft Bill. In particular, it will tackle “libel tourism”. This is very welcome:  current laws allow people and corporations outside the country to bring expensive and chilling cases in the UK even when the main place of publication is elsewhere – and where even a few people accessing an article online in the UK can provide the excuse to use British courts.

But other parts of the Bill are more worrying. The government risks missing this key opportunity to ensure the UK is a country where free speech, robust scientific debate and tough investigative journalism are promoted and defended. One big concern is that the draft Bill does not offer a strong public interest defence to ensure that journalists, bloggers, scientists or others engaging in path-breaking analysis, research and debate, can expose public or criminal wrongdoing.

The need for a strong, effective public interest defence is a key question for Leveson too. There are various UK laws that currently should but do not contain such a defence, including the libel laws, the Official Secrets Act, the Regulation of Investigatory Powers Act, and the Computer Misuse Act. Without public interest safeguards for responsible investigative journalism, and for other researchers and analysts, the reporting that exposed News of the World hacking, or the publishing of challenging scientific debates, will be squashed and restricted – the long finally unsuccessful case for libel against science writer Simon Singh in the Guardian being a case in point.

Both Leveson and libel reform affect the climate for freedom of speech and free enquiry in ways that go far beyond the borders of traditional media.  While the government is proposing a process in the defamation bill that will provide welcome protection for internet service providers from bullying and threats, at the same time there are plans to provide the police and intelligence with further powers to access online communications.

And there are also risks – unless tackled by Leveson – that whistle-blowing (whether from government, police or other public or private bodies) could be seriously threatened as a fall-out from some of the more unsavoury practices of one media group. Yet whistle-blowing to the media, to researchers or bloggers, and to other outlets has time and again proved a vital part of exposing government and corporate wrongdoing – the MPs’ expenses scandal being just one of many pertinent examples. Statutory regulation of contact between police and journalists or politicians and journalists could be seriously damaging.

We hope that 2012 will go down as the year when the UK stood out as a global leader in setting new standards to protect and promote freedom of expression and high quality, investigate journalism. The risk is it could go down as the year of missed opportunity and increased constraints on freedom of speech.

Kirsty Hughes is Index on Censorship’s chief executive

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This springs from a 1993 court decision now referred to as the Derbyshire judgment. This ruling established the principle that public bodies such as councils, local authorities and government departments may not sue for libel.

Index on Censorship, as part of the Libel Reform Campaign, backs this principle.

In recent years councils have circumvented the Derbyshire judgment by funding the actions of individual staff members and elected councillors. Bedford Borough Council, South Tyneside Council and Carmarthenshire County Council have all used public money to fund defamation cases on behalf of employees, contrary to the spirit of the Derbyshire judgment.

A 2004 parliamentary order allows local authorities to protect elected councillors and staff if they are sued for defamation, but does not permit them to bring an action as a claimant. But as Wesley O’Brien, a solicitor at Bevan Brittan pointed out in Local Government Lawyer magazine, local authorities can fund a claim brought by an individual officer, and assist them if it can justify this expenditure:

 As the law currently stands, a local authority can fund a claim brought by an individual officer [council staff member] and it can also assist an officer in defending such a claim, where it considers such public expenditure to be justified. The position is, however, different for members where a local authority is only entitled to fund a defence, but not a claim…The only condition is that the statements made must refer to and be defamatory of the individual concerned.

Jonathan Heawood of English PEN said:

It is of fundamental importance in a democracy that citizens are able to express their views — even potentially offensive or distressing views — about their government, at a national or local level. Local authorities, or any public body, should not be using our libel laws to silence criticism.

The following examples demonstrate how to silence public criticism.

Bedford Borough Council

In 2002/2003, Bedford Borough Council spent over £400,000 pursuing a libel action on behalf of the chief executive (who lost on two counts, won on two), the council’s solicitor and the council’s employed lawyer (who lost all their claims) against a Conservative party election agent and a local newspaper. The election agent claimed maladministration after the borough council allowed a recount of the votes in the Brickhill ward election, without reference to the election agents. A local weekly free newspaper, Bedfordshire on Sunday, repeated the election agent’s allegations.

These private actions were supported and paid for by Bedford Borough Council from the beginning. Councillors were allegedly told that as the three officers were criticised for actions undertaken in the course of their official duties, the council could face claims for dereliction of its duty of care if it did not agree to support them. The council was not insured for the action and in the end the costs were taken from the council’s reserves.

Carmarthenshire County Council

After a libel action between a council planning officer and a local couple, Carmarthenshire County Council changed its constitution so that public money can now be used to bring defamation actions by Council staff or members. The libel action between Kerry and Jacqui Thompson from Llanwrda and the local authority’s director of planning Eifion Bowen, arose from letters circulated by the couple which were never published in the wider media. The Thompsons apologised to Mr Bowen at a hearing in October 2007 when they were given 12 months to pay legal costs totalling £7,000.

The following year, Carmarthenshire County Council changed its constitution so public money could be used for libel actions; an FOI request revealed its total legal costs from external organisations (solicitors and counsel) rose from £364,369 to £711,832.

South Tyneside Council

South Tyneside council is currently proceeding with a libel action on behalf of its council leader Cllr. Iain Malcolm, fellow Labour councillor Ann Walsh and independent councillor David Potts, alongside borough regeneration boss Rick O’Farrell. Normally, defamation actions brought on behalf of councillors are not allowed under the Local Authorities (Indemnities for Members and Officers) Order 2004, and the Derbyshire principle, but as the first stage of the case is being pursued in California the council may be exempt.

The council managed to get an order from the Superior Court of California forcing Twitter to name an anonymous blogger (“Mr Monkey”) who was a vocal critic of the authority. South Tyneside has refused to reveal its legal costs, but has said the figure would be less than £75,000.

Like the Bedford Borough Council case, a council spokesperson defended the action on the basis of a duty of care:

The Council has a duty of care to its employees and, as this blog contains damaging claims about council officers, legal action is being taken to identify those responsible.

The amount spent is under the threshold required for the decision to go to the council’s cabinet for approval. If it did need to go the council’s cabinet it would cause a serious conflict of interest as council leader Iain Malcolm is a plaintiff in the case, and as leader he selects the council’s cabinet (which grants these councillors an additional allowance of £9,408.96).

The Libel Reform Campaign put the following questions to Mark Harding, Head of Legal Services at the council:

1. Will the council attempt to overturn the Derbyshire principle and fund a libel action for the above-stated individuals?

2. What legal advice has the council sought in regards to the Derbyshire principle, and whether your authority can pursue such an action?

3. Has the council funded the action on the basis that the defamation action is being taken through the Californian courts and is therefore exempt from the Derbyshire principle?

4. If the council is not going to pursue a defamation action, have you or will you share the information disclosed by the Californian courts with the individual claimants?

5. If you will share or have shared this information, do you intend to reclaim from the individual claimants the costs incurred by the local authority in seeking this information?

6. What are the total costs of this legal action, and has the council taken out After The Event (ATE) insurance for this case?

You can read his responses here

Independent councillors have alleged this defamation action is “an attempt to identify the whistleblowers who supplied information about Newcastle Airport.” The whistleblowers made public the payment of £8.5m to two executive directors of Newcastle Airport (jointly owned by five councils including South Tyneside) during a £377m refinancing deal with the Royal Bank of Scotland. Cllr Iain Malcolm was one of the five individuals on the remuneration committee who approved the payments to the directors. According to the Daily Mail, “advice from a senior colleague urging them to think again was ignored.”

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Users of an online carers forum are devastated after their site is closed following threats of legal action. Emily Butselaar reports on a worrying instance of internet censorship 

A private firm, Atos Healthcare, in receipt of £100m of public money to test whether disability benefit claimants are fit for work has used legal threats to silence online criticism from disability rights campaigners.

After threats of legal action, web host myfreeforum.org has pulled the plug on the website CarerWatch, a closed forum. The site’s users have still not been informed of the nature of the complaint.

Atos Healthcare, a division of IT services firm Atos, is sub-contracted by the Department for Work and Pensions (DWP) to assess whether sick and disabled people are entitled to disability benefit (now called employment support allowance). The assessments are a key part of the government’s welfare-to-work policy.

The company has had a difficult summer. The chair of the Work and Pensions select committee, Dame Anne Begg MP,  criticised the company in July: “There have been failings in the service Atos Healthcare has provided, which has often fallen short of what claimants can rightly expect.” Earlier this month, an Observer investigation revealed that 12 doctors employed by the French-owned company are being investigated by the General Medical Council.

Mike Harris of the Libel Reform campaign said:

“This case demonstrates the inconsistencies in our libel laws. Because Atos Healthcare are out-sourced work by the public sector they are allowed to sue for defamation, whereas a public body performing the same services can’t. It’s unacceptable. The work that Atos are undertaking is paid for by the taxpayer and as such taxpayers, in this case a group of carers, should be able to express a strong opinion on this.”

He added:

“Atos did not approach the author of the supposedly defamatory piece, who ultimately bears responsibility for what they wrote. Going direct to the internet hosts to pull the plug on this forum, which provides help and support for many vulnerable people, is a form of extra-judicial silencing. We need the select committee looking at the draft defamation bill to make concrete proposals to stop legal threats against internet hosts bringing down entire websites.”

Frances Kelly the founder of Carer Watch claims the site has never had a policy on Atos, instead their campaign is directed at government policies that affect people with disabilities. The site had no contact with Atos, who bypassed them to take their complaints directly to the web host.

Kelly has now written to Atos Healthcare asking for an explanation. She said: “Many members who are very fragile and the sudden disappearance of a support group has caused a lot of distress and fear. Some are ringing us in tears.”

In a statement the company said: “While we fully support the right of people to express their opinions, it is our duty to protect the reputation of our employees and company against false and malicious allegations. In such circumstances, we will look to take any necessary steps to ensure that these unsupported claims are addressed swiftly and appropriately.”

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httpv://www.youtube.com/watch?v=VCDvRJKQjSI

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